-
sponsorship
It's disappointing that neither presumptive presidential nominee names John Paul Stevens as the type of justice whom he'd like to nominate to the U.S. Supreme Court.
This is not to say that Stevens, a Republican appointee, belongs in every pantheon of GOP judges. Nor is it to say that Stevens, at times now called the leader of the court's liberal wing, belongs in every Democratic pantheon. It is, rather, to recall that in 1975, a U.S. president did well to select a justice based on legal acumen, with little regard for ideological bent. Stevens was the quintessential post-Watergate appointee. The Chicago native had not been active in partisan politics. His credentials were impeccable. As I've detailed here, he: was awarded the Bronze Star for having helped decipher the Japanese code during World War II; graduated top of his class from Northwestern University School of Law; clerked for Justice Wiley B. Rutledge; had a respected career as a name partner in an antitrust litigation firm; was chief counsel of an investigation that uncovered corruption in Illinois' Supreme Court; and had served on the U.S. Court of Appeals for the 7th Circuit since 1970. Sen. Charles H. Percy, R-Ill., reminded his peers at the 1975 nomination hearings that five years earlier he'd called Stevens "a lawyer's lawyer"; now, he assured them, Stevens was "a judge's judge."
Stevens' positions on issues played little role in his selection. Case in point: Even as Stevens' nomination was under consideration, states were petitioning to lift the death-penalty moratorium in place since Furman v. Georgia (1972). Yet neither President Gerald R. Ford nor any senator asked him his views on capital punishment, publicly or privately. (Stevens—who within months of joining the high court would cast the essential vote in Gregg to allow some revised death-penalty statutes—has said that at the time he did not know how he would answer the question.)
Some of Stevens' opinions have drawn the ire of Democrats on the left, others of Republicans on the right. Yet the Republican president who appointed him wrote in 2005:
... I am prepared to allow history's judgment of my term in office to rest (if necessary, exclusively) on my nomination thirty years ago of Justice John Paul Stevens to the U.S. Supreme Court. I endorse his constitutional views on the secular character of the Establishment Clause and the Free Exercise Clause, on securing procedural safeguards in criminal case and on the constitution's broad grant of regulatory authority to Congress. I include as well my special admiration for his charming wit and sense of humor; as evidence in his dissent in the 1986 commerce clause case of Maine v. Taylor and United States, involving the constitutionality of a Maine statute that broadly restricted any interstate trade of Maine's minnows. In words perhaps somewhat less memorable th[an] "Shouting fire in a crowded theater," Justice Stevens wrote, "There is something fishy about this case."
He has served his nation well, at all times carrying out his judicial duties with dignity, intellect and without partisan political concerns. Justice Stevens has made me, and our fellow citizens, proud of my three decade old decision to appoint him to the Supreme Court. ...
One hopes that the person whom voters entrust with the filling of federal judicial vacancies will give priority not to "partisan political concerns," but rather to "dignity" and "intellect," ideally tempered with "charming wit and sense of humor."
("Continuing" disclaimers, interposed here but not always to be repeated: First, as previously noted here, I had the privilege of serving as a law clerk to Justice Stevens in OT 1988 and am at work on a biography of him. Second, it''s been my privilege to give his campaign volunteer advice on international law and human rights; however, no one has consulted me on judicial selection.)
-
sponsorship
It seems fitting that
Justice John Paul Stevens chose Chattanooga, Tenn., for his first public comments since he declared that capital punishment is unconstitutional with these words in
Baze v. Rees:
[T]he imposition of the death penalty represents "the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment."
Chattanooga, it may be remembered, was the intended destination of nine African-American young men whom a sheriff's posse pulled off a freight train and brought to
Scottsboro, Ala., where within weeks most were convicted of capital rape (a
crime now under Supreme Court review) and sentenced to death.
On this date in 1931, eight of the condemned Scottsboro defendants were interviewed by teacher/author/activist
Hollace Ransdell, who wrote in her report, commissioned by the American Civil Liberties Union:
I visited them there in their cells in the death row on May 12, locked up two together in a cell, frightened children caught in a terrible trap without understanding what it is all about.
Cases of two Scottsboro defendants resulted in landmark Supreme Court judgments:
Powell v. Alabama (1932) established that the Constitution guarantees indigent capital defendants a right to effective appointed counsel, while
Norris v. Alabama (1935) held that the county's systematic exclusion of African-Americans from the jury pool violated the Constitution's equal-protection guarantees. No Scottsboro defendant was executed.
Alabama retains capital punishment, however, as do three of the four states in the 6th Circuit: Kentucky, home to the derby and the
Baze case; Tennessee, home to Chattanooga; and Ohio have a total of
four women and 317 men on death row (the fourth state in the circuit, Michigan, does not permit the death penalty). Thus it's worth noting that Stevens' criticism of the sentence reportedly "drew a round of applause" from the scores of federal judges and hundreds of lawyers in attendance.
Stevens indicated that even as he continues to adhere to court precedents authorizing capital punishment—indeed, he voted against capital defendants on the precise issues at bar in
Baze and in a consular-access case,
Medellín—he welcomes discussion on the ultimate question. Referring to the former decision, Chattanooga's Mercer wrote:
Justice Stevens ... conceded his opinion would 'generate debate not only about the constitutionality of the three-drug protocol, but also about the justification for the death penalty itself.'
(Cross-posted at IntLawGrrls blog)
-
sponsorship
Harris County, Texas, Judge
Caprice Cosper has set Aug. 5 as the date for execution of José Ernesto Medellín, whose bid for relief the U.S. Supreme Court rejected in a 6-3 decision issued at the end of March.
At issue in
Medellín v. Texas was Article 36(b) of the 1963
Vienna Convention on Consular Relations, which requires law-enforcement agents to advise noncitizen suspects of their right to contact their consulate (prior posts
here). The enforceability
vel non of that article had been the subject of considerable litigation in the United States and in the International Court of Justice. In
Medellín—involving a death-row petitioner who, like many persons arrested in the United States for decades after America joined the treaty regime, never was advised of his consular-access rights—the Supreme Court was called upon to consider:
- Did President George W. Bush overstep his constitutional authority by instructing state courts to give to defendants like Medellín "review and reconsider[ation]" of their cases, as mandated by the International Court of Justice in Mexico v. United States (Avena) (2004)?
- Must a court in the United States honor the United States' treaty obligation by itself enforcing the ICJ's decision?
Both issues having been pressed, the court decided both. Treating the latter question first, Chief Justice
John G. Roberts Jr. answered "No," in an opinion that interpreted precedents on whether a treaty provision is self-executing more narrowly than they were treated in, for example, the
Restatement (Third) of the Foreign Relations of the United States (1987). The answer to the former question was "Yes"—in telling a constituent state what to do, the president had violated the Constitution. The dissent of Justice
Stephen G. Breyer relied on the earlier view of nonself-execution doctrine. But to no avail; Breyer was joined by only Justices David H. Souter and Ruth Bader Ginsburg. (
Margaret E. McGuinness'
ASIL Insight here; prior Convictions posts on the decision
here and
here.)
And thus did Medellín this week return to a Texas courtroom.
At this Houston hearing, Medellín's attorneys—
Sandra Babcock, clinical associate professor of law and clinical director, Center for International Human Rights, Northwestern University School of Law,
Donald Donovan of New York's Debevoise & Plimpton—sought to delay execution. "This is a case whose effects go far beyond this courtroom," Babcock said. Donovan added, "This country is committed to the rule of law. We have a legal obligation. We should comply with it."
"I did not intend to hold a hearing. I did intend to set an execution date."
One suspects that this was not the "further appropriate action by the State of Texas" that Justice
John Paul Stevens had in mind when, agreeing with Breyer's view of the nonself-execution doctrine but disagreeing that its threshold had been met, he concurred in the court's judgment in
Medellín.
-
sponsorship
Anyone happen to catch ABC’s Boston Legal last night? I’ve never watched the show, but somehow found myself gaping through an episode in which James Spader argues what turned out to be last week’s Louisiana capital rape case before an astoundingly good simulation of the current high court. They found actors who looked enough like the justices to be credible, Spader pretty much argued the brief in Kennedy, and the writers allowed an entire 15 minute segment just for his oral argument. I can’t recall another time I’ve seen anything as close to the real justices represented on prime time television, or a moment in which someone in the popular culture – outside an op/ed -- really took on the Roberts Court as a collection of political actors rather than an abstract blur of black robe.
To be sure, David E. Kelly’s brief against the Roberts Court (too pro-death, too pro-business, too pro-Bush . . .) was more than a little overheated. The four conservative justices looked a little too smug and jowly. When Spader segued from arguing capital rape, to Bush v Gore and then the Exxon case I nearly threw a shoe at him. And when he cowed the conservatives into silence by reminding them of the court’s role as the nation’s “conscience” and its duty to the ideal of "mercy" I actually laughed out loud. Still, I am guessing ABC’s viewers learned more about the Supreme Court – how it looks and feels inside, how argument happens, how the various Justices behave, and how ideology is at least part of what they do – than they would have done in anything short of an actual visit to the court. And I can’t help but think that if more television and movies actually dealt with the court -- even a fictionalized one -- the public would better understand why the court matters and why elections matter.
-
sponsorship
One of the most interesting aspects of the fractured opinions in yesterday’s Baze v. Rees decision on lethal injections is that they almost read like an elaborate MMPI result. Some are almost stunning for how much individual judicial temperament and personality shine through. Justice Stevens concurrence is remarkable, for instance, for its late-in-his-career assessment that in the wake of “extensive exposure to countless cases for which death is the authorized penalty” which (quoting Justice White in Furman) makes only “marginal contributions to any discernible social or public purpose,” he’s concluded that capital punishment violates the Eighth Amendment. Justice Scalia concurs separately just to respond that Stevens’ conclusion is “insupportable as an interpretation of the Constitution” and that his “policy analysis . . . fails on its own terms.” He then holds out Stevens conversion on the death penalty as the height of “rule by judicial fiat,” and closes by scoffing that Stevens has subordinated legal scholarship, the work of legislators, and the preferences death penalty supporters to his own personal experience which “reigns over all.”
You all probably remember this movie from the first time we saw it, in Kansas v. Marsh. Still, I wonder whether it’s the death penalty itself that brings out these very pointed, personal reflections and stinging personal attacks from the justices, of if there is something about the rather dishonest way we are having the whole conversation about it that gets them so riled up.
-
sponsorship
That's a wide-angle framing of the question on which the Supreme Court's set to hear oral argument this morning in the case of
Kennedy v. Louisiana.
Yes.
Or so said a majority of the court, in almost the exact same words, when it invalidated a death-penalty-for-rape in
Coker v. Georgia (1977). But that was then, this is now. Justice John Paul Stevens is the only member of that majority still on the court, and in the interim three decades, concerns about crime have pushed to the fore.
-
sponsorship
Benjamin and Emily appear to agree that, as he puts it, "[t]o the extent the eventual convictions of KSM et al rely on coerced testimony, even indirectly,... the Defense Department should not put them to death." But should the prospect of execution alone be the only concern? Benjamin does proceed to discuss "clean convictions," implying the answer is "No."
At least since the days of Mapp (1961) and Wong Sun (1963) -- or, for that matter, Bram (1897) -- the question of tainted evidence has arisen 1st and foremost at the guilt/innocence phase. If it's addressed properly there, most likely there'd be no cause for reconsideration-in-mitigation at sentencing. Seems a simple enough premise. Yet it's one away from which the U.S. criminal justice system's seemed to have moved in recent years. Example of this shift: the widely shared notion that it's a victory when a tainted-for-whatever-reason capital sentence is commuted to life.
-
sponsorship
Emily’s brief post raises several fascinating questions, which seem to me to warrant fleshing out. The key sentence is the following: “if the government executes these men [the 9/11 plotters] after the coercive interrogation (torture) some of them experienced and all the failings of the this-ride-only military tribunals set up to try them, the damage Guantanamo has done to the reputation of our justice system will be raised by a power of ten.” But that specter, she writes may concentrate the mind. So “maybe the threat of the death penalty is the best hope that they will get some semblance of real due process.”
So here are my questions—to Emily and to all:
1) Whatever people think of the death penalty, should the circumstances of these detainees’ interrogation ameliorate their sentences? I can see why we would want to suppress evidence obtained under duress. I’m not sure I see why being coercively interrogated—even tortured—lessens one's culpability for September 11, assuming that culpability can be proven without relying on evidence obtained improperly.
2) Are we really so confident that these tribunals are incapable of delivering a semblance of real due process? Are they really that different from other ad hoc tribunals countries have set up to deal with extraordinary international criminal trials? Nuremberg, after all, was a this-ride-only military tribunal and we think of it as a triumph of international justice. Do we really think fair trials are impossible under the Military Commissions Act and, if so, why?
3) What would “real due process” look like for these defendants at this time?
-
sponsorship
by Diane Marie Amann
Today the issue of race divided conservatives in America.
In Snyder v. Louisiana, the U.S. Supreme Court reversed defendant's capital conviction for murder of his estranged wife on the ground that the exclusion of a single potential juror -- an African-American student teacher -- violated the Equal Protection Clause of the 14th Amendment to the Constitution. The 7-2 judgment is remarkable. That's not only because the majority included 3 persons typically identified with the Court's conservative wing: Justice Samuel A. Alito, Jr., the author; Chief Justice John G. Roberts, Jr.; and Justice Anthony M. Kennedy. Also remarkable is the brevity of the opinion. Attorneys who have litigated Batson motions, as I have, no doubt will remark on the quick certainty with which the Court concluded that there had been a sufficient showing that the state acted "in substantial part by discriminatory intent" (pp. 12-13) simply by comparing the treatment of the student teacher with that of 2 white veniremen.
The Court left unsaid what well may be a prime source of that quick certainty: Snyder had come to be known as the O.J. revenge case, a case in which the prosecution struck not 1 but all potential jurors of African-American heritage. It was a case in which the prosecution alluded in his penalty-phase closing to the then-recent acquittal of O.J. Simpson on charges of murdering his ex-wife, and suggested to jurors that they should not let the defendant before them "get away with" it. All 3 of the members of Louisiana's highest court who dissented from affirmance of the conviction cited this overall context -- as 1 put it, "this injection of racial issues, and the fact that the prejudicial
arguments were made to an all-white jury" (942 So.2d 484, 501) -- as evidence that exclusions of potential jurors were racially motivated.
The U.S. Supreme Court is to be commended for what it did in Snyder. But on this day when America ponders Sen. Barack Obama's profound unmasking of the issue of race, it seems proper to question the decision of the Court to leave so much unsaid.
(prior Convictions posts on Obama's speech here and here)
Join the Fray: our reader discussion forum
What did you think of this article?